Opinion,
Me. Justice McCollum:There is no evidence in this case which warrants an inference that the defendant company accepted Bricker as a pas*4seager on its train from Port Clinton to Tamaqaa. He entered a car which he knew was not provided for the transportation of passengers. He was on the train without the knowledge or consent of the company, .and in a place where its employees in the discharge of their ordinary duties would not discover him. It was a place devoted exclusively to the railway mail service, and in charge of one of its employees. He was confronted by an order of the superintendent of that service, forbidding him to remain there. He was not there for any purpose which related to a duty of the company in the transportation of its passengers or their baggage.
Upon these undisputed facts appearing in the plaintiff's evidence, no contract for safe carriage existed between the company and the deceased. A passenger, in the legal sense of the word, is “ one who travels in some public conveyance, by virtue of a contract, express or implied, with the carrier, as the payment of fare or that which is accepted as an equivalent therefor: ” Penna. R. Co. v. Price, 96 Pa. 256. In Wharton on Negligence, § 354, the undertaking of the carrier is thus defined : “ A carrier, in undertaking to carry passengers safely, undertakes to carry them safely if they place themselves under his direction in particular places prescribed for the purpose; and he will not be held liable for damages accruing to an interloper, who, unnoticed by him, hides in the crevices of a locomotive, or in the hold of a ship. In Patterson’s Ry. Acc. Law, § 214, it is stated, “ that the existence of the relation of carrier and passenger is dependent upon the making of a contract of carriage. From this it follows that railways are not liable to persons who have not been accepted as passengers, and the intention of tire person to pay his fare and his good faith are immaterial, where there has been no contract, express or implied, on the part of the railway.”
These quotations from standard text-books correctly state the law on the subject to which they refer. As Bricker was not a passenger, and was on the train without the consent, express or implied, of the company, it owed him no duty, and the nonsuit was rightly ordered. In this view of the case, it is unnecessary to consider whether, if he had been accepted as a passenger, he was guilty of negligence which contributed to the injury he received, and which caused his death.
Judgment affirmed.